Feminist Law Profs Interview with Sara McDougall

I recently spoke with Sara McDougall (History, John Jay College) about Professor McDougall’s book Bigamy and Christian Identity in Late Medieval Champagne (Penn Press 2012), previously blogged here, as well as Professor McDougall’s other work.

Crawford Question: In the church court prosecutions you studied, why do you think female bigamy was excluded from punishment?

McDougall Answer: To answer this question I should first explain that the men and women living in fifteenth century France who I studied were not living with multiple spouses at once. Instead, these husbands and wives separated from their spouses and remarried. They may have wanted – if the option had been available – to end the first marriage altogether with a divorce, but they had no legal means to do so.

I should also explain what the punishment was. In the majority of cases, church courts in this time and place punished offenders with fines (the best way to generate income for the court). For bigamy, however, and almost exclusively male bigamy, offenders were sentenced to several months or a year in prison and in chains. Additionally, exclusively in cases of male bigamy, the bigamists were subject to public punishment, bound for one or even three days to the ladder of the scaffold that usually stood in front of the cathedral. It was an extremely humiliating and also probably painful punishment.

In trying to understand the reasons that men were punished more often and more harshly than women, it was first of all easy to dismiss the idea that women were not punished because they did not commit bigamy – I had evidence that many, many women were in fact marrying again despite being already married to a living (if usually distant) spouse. Moreover, the court had good reason to suspect or even feel convinced that these women had done so, but nevertheless either did not prosecute the women for bigamy at all, or fined them for less serious infractions, such as remarrying without first providing proof of death (which the local Church law required). So I knew that women, just like men, married more than they should have.

I argue in the book that these courts treated women differently because they saw a woman committing bigamy as a different kind of offence than a man doing the same thing. Their understanding of marriage, and appropriate gender roles in marriage, made husbands the responsible party, responsible for their own behavior as well as that of their wives. If the marriage fell apart – even if the wife left her husband – and the husband remarried he was considered responsible not only for deceiving a second would-be wife, but he was also held responsible for the failure of the first marriage regardless of how the rupture took place. I discovered this when I compared different cases of male bigamy and saw how little it seemed to matter to the court if the husband had left his first wife or if she had left him. Men with both prior marital histories faced the same punishment.

Women, meanwhile, were not punished as often or as harshly because they were seen as irresponsible. Moreover, I suggest a woman’s bigamy was perceived differently not only because women were seen as irresponsible and so not accountable for their behavior, but also because women did not necessarily do something that was viewed as altogether bad in committing bigamy. If they had been abandoned by their husbands, it was in some ways far better for them to seek out and submit to another man’s control rather than be left free to live without male guidance. This is not to suggest that women could not provide for themselves in the Middle Ages – quite the contrary – but there is certainly a preference in late-medieval French society that women were part of a household with a man at its head.

Q. Did it matter whether both parties to the “remarriage” had been married before? What if only the man had been married before? What if only the woman had been married before?

A. I do have one case where a husband and wife each remarried and are prosecuted together. Otherwise it is only one person prosecuted for an illegal remarriage, and the vast majority are male. If the women they committed bigamy also had living spouses, the courts did not prosecute them. In some cases, however, the spouse of the bigamist is fined for marrying someone who was not free to marry (once again, almost all men).

Q. Why was bigamy such a serious issue for the Catholic Church in medieval Northern France?

A. It really seems to come down to the importance of marriage, Christian marriage, in that society. I argue that marrying in a Christian way (monogamously) was central to identity in late-medieval Northern France. Catholic marriage doctrine insisted, and insists, that marriage has to be a monogamous and indissoluble bond between one man and one woman. Throughout the Middle Ages theologians and canon lawyers increasingly emphasized the importance of the singularity of that bond, basing their claims on the Bible, and specifically the Epistle to the Ephesians, where the union of Christ and the Church is defined as a marriage and Christians are told that their marriages ought to resemble this union. Just as Christ had married the Church in an exclusive and indissoluble union, so too should all Christians who married. As a result, to take another spouse while a first lived was considered unchristian, something that Jews or Muslims might do.

I should add that evidence for this kind of insistence on monogamous marriage is, as far as I can tell, found only in Northern France in the fifteenth century. In other parts of Europe the rules governing marriage were by no means as strictly enforced. However, in the sixteenth century – with the Reformation and Counter Reformation, with the threat of Muslim invasion, and with the arrival of Europeans in the Americas, Africa, and Asia, each with their share of polygamously marrying peoples – those Christians who married bigamously, especially in Catholic countries, were subject to unprecedentedly harsh punishment (execution, galley service, exile and lengthy imprisonment), and on an unprecedented scale.

Q. What relevance, if any, does this have for modern criminal law?

A. One of the things that this book provides is some perspective on why monogamy is so commonly considered the only appropriate form of marriage in so much of the modern world. While my book describes the first bigamy prosecutions known to have taken place on any scale, western dislike for bigamous or polygamous marriages has much deeper roots. The ancient Greeks prided themselves on their monogamy, as it distinguished them from their polygamous Persian neighbors and enemies. The ancient Romans also married monogamously. They also declared bigamy illegal, perhaps under Christian influence. We don’t really know why the Greeks and Romans were so proud of their monogamy. I would argue in any case that it is the Christian celebration of monogamy, and not only monogamy but indissoluble monogamy (marriage with no possibility of divorce) that rendered all other forms of marriage not only inappropriate but illegal in Europe and in the United States. It was this tradition rather than horror at Mormon polygamy, that set the limits, and continues to set the limits, on how many persons one can be married to. Sarah Pearsall’s next book will be a must-read on this subject

Q. What are you working on next?

A. While I was researching and writing about bigamy, I found myself thinking of adultery as a useful foil to balance bigamy against. Thinking about the two together helped me to understand how to distinguish between adultery and bigamy, as courts clearly made that distinction, and why the two crimes were punished so differently (adultery was punished much less harshly than bigamy, almost always the offender just paid a small fine). As I continued my work on bigamy, however, I became suspicious about many of my assumptions about adultery. I began by thinking that adultery was essentially a female crime, a crime that only women would be punished for. I started to wonder, especially when I noticed in passing a lot of men being fined for adultery, if male lovers might be punished at least as often, if not even more often, that wives.

I am now convinced that we know very little not only about the prosecution and punishment of adultery in late-medieval France, but also how adultery was handled much more broadly. To that end, I am working now on a book that will address how people dealt with adultery in and out of court, in homes and communities, and at every level of the social hierarchy.